A railroad company is not liable for the killing by a train of a person, while on the track in this position, unless the trainmen had actual notice that the object was a human being, and that, after they discovered it was a human being, they had time to stop the train and avoid the killing. Voorhees v. Railroad, 30 S.W.2d 24; Ayers v. Railroad, 190 Mo. 236; Trigg v. Railroad, 215 Mo. 541; Murphy v. Railroad, 228 Mo. 83; Kurn v. McCoy, 102 P.2d 177; Mo. Pac. Ry. v. Gordon, 98 P.2d 39; Carpenter v. Kurn, 136 S.W.2d 1004; Joy v. Railroad, 105 N.E. 330; Southern Ry. Co. v. Wahl, 149 N.E. 72; Burg v. Railroad, 57 N.W. 680; Little Rock, M., R. T. Railroad Co. v. Haynes, 1 S.W. 774; Mo. Pac. Ry. Co. v. Prewitt, 54 P. 1067; Spiegle v. Railroad, 185 S.W. 1138; Goodman v. Railroad, 77 S.W. 174; Louisville No. T. Railroad Co. v. Williams, 12 So. 957; Murch v. Railroad, 29 N.Y.S. 490; Houston Railroad v. Sallee, 120 S.W. 216; Norfolk W. Railroad Co. v. Dunnaway, 24 S.E. 698; Smith v. Railroad, 51 So. 792. (2) The duty of the trainmen to stop the train, under the humanitarian doctrine, did not arise until a situation of peril arose. If the object on the track was animate, the trainmen had a right to assume that he would leave the track for his own safety. Deceased was not in a position of imminent peril until the trainmen discovered him to be a human being.

Now, in view of the testimony of the fireman that the train could have been and was stopped in a distance of about 160 feet, and of the engineer in a distance of 200 feet, and the testimony of the retired expert engineer that the object should have been recognized as a human body at a distance of 300 or 400 yards, we think it clear that it was for the jury to decide whether the trainmen saw McGill in a position of peril, and realized that the object was a man at a distance of 200 feet from it, notwithstanding their denial that they realized it was a human being at that distance, and whether, in the exercise of ordinary care, it was their duty at that very time to take the steps which afterwards proved would have averted the accident. Plaintiff in error relies especially upon the following cases: Railway v. McMillan, supra; Caldwell v. Railway Co., 54 Tex. Civ. App. 399, 117 S.W. 490; and Railway v. Sallee, 56 Tex. Civ. App. 23, 120 S.W. 216 — each of which is thought by us to be distinguishable on the facts. In the McMillan Case it was pointed out by the Supreme Court that, after discovering the deceased, and recognizing that he was a human being, it was impossible to have stopped the train before he was struck, and also that the facts contradict any suggestion that, if the train had been checked, he would have gotten off the track.